‘Convertibility’ of agricultural buildings

Class Q(a) in Part 3 of the Second Schedule to the GPDO permits the change of use of a building and any land within its [restrictively defined] curtilage from use as an agricultural building to a use falling within Use Class C3 (dwellinghouses). The wording of Class Q(a) does not refer to “conversion”, but it will clearly be necessary in order to bring about the permitted change of use to carry out various physical works to the building in order to enable this change of use to be made. Certain other Classes of permitted development in Part 3 (such as Class O, relating to the residential conversion of office buildings) do not permit any development comprising building operations, so that the only works that can be carried out within the scope of Class O are purely internal alterations. However, in the case of an office conversion these may be extensive, including new internal walls, new floors in some cases, considerable plumbing and electrical work, and a general re-arrangement of the internal layout of the building. These will all be covered by section 55(2)(a) of the 1990 Act, which exempts such purely internal works from the definition of development.

In the case of the residential conversion of an agricultural building under Class Q, there can in my view, be no objection to similar internal alterations and re-arrangements. In addition, Class Q(b) permits certain building operations, but paragraph Q.1(g) provides that development is not permitted by Class Q if the development would result in the external dimensions of the building extending beyond the external dimensions of the existing building at any given point, and paragraph Q.1(i) also precludes development consisting of building operations other than the installation or replacement of windows, doors, roofs, or exterior walls, the installation or replacement of water, drainage, electricity, gas or other services, to the extent reasonably necessary for the building to function as a dwellinghouse.

Notwithstanding the very wide definition of a “building” that has been adopted by the courts over the years (see Cardiff Rating Authority v Guest Keen Baldwin [1949] 1 KB 385, Skerritts of Nottingham v SSETR (No.2) [2000] 2 P.L.R 102; [2000] J.P.L. 1025 and R (Save Woolley Valley Action Group Ltd) v Bath and North East Somerset Council [2012] EWHC 2161 (Admin)), it has always been clear that the development permitted by Class Q (and by its predecessor, Class MB in the 1995 Order) does not, and was never intended to, authorise the substantial demolition and reconstruction of the pre-existing building, nor does it enable the extensive rebuilding of an insubstantial structure so as to create what would in substance be a new building.

Even before the government amended its online planning practice guidance (PPG) in March 2015, it was clear from appeal decisions that where existing structures, and the materials from which they were constructed, were so insubstantial that the buildings would require almost complete reconstruction in order to meet the requirements of the Building Regulations, the extent of the proposed building operations would inevitably be seen as going beyond the extent of the works that were envisaged by the terms of Class Q(b) [or the former Class MB(b)] as being “reasonably necessary” for the building to function as a dwellinghouse, and could also be sufficient to disqualify the building from residential conversion under Class Q(a). As I put it in A Practical Guide to Permitted Changes of Use: “This imposes a practical constraint on the convertibility of some buildings. Works that amount to substantial demolition and reconstruction or replacement of the existing fabric would go beyond what is permitted.”; and I have cited (on page 107 in the Second Edition) two appeal decisions issued in January and February 2015 respectively which reached exactly this conclusion.

In light of this, the High Court judgment last week in Hibbitt v. SSCLG [2016] EWHC 2853 (Admin) is unsurprising. It simply confirms this well understood principle. It is not even necessary to call in aid the revised wording of the PPG in order to interpret the plain words of the GPDO. I don’t propose to go into the facts of this case. Suffice it to say that it is over-optimistic to expect that a building comprising a light steel frame supporting a corrugated iron roof, which is largely open to the elements on three sides (except for limited cladding up to a few feet from the ground in some cases) is capable of being converted to residential use without building operations that would be so extensive as to go well beyond the scope of the operations permitted by Class Q, and would amount either to substantial rebuilding of the pre-existing structure or, in effect, the creation of a new building.

For this reason, the excitement and/or consternation (depending on your viewpoint) that Hibbitt seems to have aroused in some quarters appears to me to be misplaced. This judgment does no more than to re-affirm the principle that was clearly to be derived from the wording of Class Q itself, as already applied in a number of prior approval appeals, including the two which I cited in the book.

We should be wary, on the other hand, of reading more than this into the Hibbitt judgment. What I have called “the structural issue” has in effect two limbs. The first is the fundamental point discussed above, which was dealt with by Hibbitt, but the second aspect of this structural issue is the question of how much internal work can be carried out inside the building within the scope of Class Q. It is this latter aspect of the matter that I have discussed in detail in the new Appendix D in the Second Edition of A Practical Guide to Permitted Changes of Use. In my view, the judgment in Hibbitt does not tell us anything about this latter issue, being focused as it was (quite rightly in terms of the subject matter of the dispute that was before the court) on the fundamental issue of the ‘convertibility’ of the building, and whether works amounting in effect to substantial reconstruction of the building can be carried out within the scope of Class Q (and of Class Q(b) in particular), as the claimant attempted to argue in that case.

I don’t propose to re-rehearse here the arguments that are canvassed extensively in my Appendix D. On reflection, the problem stems not so much from the actual wording of the revised PPG, as from an unduly restrictive interpretation of those words by LPAs (and by some inspectors). I believe that in revising the PPG ministers were simply trying to explain the fundamental principle that is now confirmed (if confirmation were needed) by the judgment in Hibbitt. However, taking account of section 55(2)(a), it seems to me that there is still scope, without infringing that basic principle, and without going outside the limitations of Class Q, to carry out internal works that may be quite extensive, even including some structural alterations, provided that these are purely internal. Rather than attempting to enlarge on this proposition here, I will leave it to readers to study Appendix D in the Second Edition of A Practical Guide to Permitted Changes of Use.(One reader has already described it as “a good read”!)

UPDATE: Readers may have seen the various comments appended to this post, discussing the effect of this judgment on existing prior approvals. Following discussions with my colleagues in Keystone Law’s planning law team, I have now published a post (16 January 2017) under the title "Can an LPA override a prior approval?” in which I have set out a revised view compared with that expressed in my original reply to comments on this issue.

© MARTIN H GOODALL

This year’s Seminar - last chance to book

It is only just a week to our seminar at the RIBA in Portland Place (London W1), so time is now very short in which to book your place, and get a complementary copy of the Second Edition of A Practical Guide to Permitted Changes of Use within this price. This package really is an excellent bargain, and it would be difficult to find better value for a CPD event. Just click on the button in the left-hand margin to place your order. [If you are using a smart phone to read this, or if you have an out-of-date or unsupported browser, and the book/seminar ordering details are not displayed on your side-bar, an easy alternative is to go onto Bath Publishing’s website at http://www.bathpublishing.com/ and click on the links on that site to access the booking details.]

If there is anyone who is holding off from buying the Second Edition in the hope of buying a third edition later, I should make it clear that the Second Edition will probably remain current for two years or more, certainly for at least a year as a minimum. Planning professionals frankly cannot afford to be without the fully updated Second Edition now, which contains much additional material compared with the First Edition.

The possibility of further changes to the GPDO that would justify a third edition in the foreseeable future (such as the demolition and reconstruction of offices) is frankly negligible. As I observed in a recent blog post, I do not take a mere footnote in an obscure press release at a party conference, which happened to mention the demolition of offices, as indicating any serious intention on the part of ministers to pursue this. It strikes me as “a bridge too far”, and would be simply too difficult to shoe-horn into the structure of the GPDO without stretching the concept of permitted development beyond any sensible limits. Rather than a prior approval that would be required for a whole host of extra issues, this type of development clearly needs to be dealt with by means of an application for full planning permission, and to be considered and determined in accordance with the full range of material considerations that apply to the determination of planning applications.

Just a final reminder of the subject matter of the Seminar: Last year we focused on barn conversions; this year we are looking more closely at the residential conversion of offices - both the legal framework and some of the practical issues that need to be addressed. We will also be touching on various recent changes in the legislation, as well as judgments and appeal decisions relating to permitted changes of use.

Among new material in the Second Edition of the book, the Orange Communications case is discussed in relation to the effective law applying to a prior approval (paragraph 1.6 in Chapter 1) and also in relation to a change in the GPDO or in a designation, such as a Conservation Area, after prior approval but before implementation (paragraph A.10 in Appendix A). There is a useful note on the treatment of residential conversions for the purposes of VAT (paragraph 5.0.1 in Chapter 5); the addition of the conversion of launderettes is covered in Part 5.2 of Chapter 5; the changes that have been made to Class O (residential conversion of offices) will be found in Chapter 7; and the residential conversion of light industrial buildings under Class PA is described and explained in the new Part 8.2 of Chapter 8.

The new provision as to the registration of prior approval applications is outlined in paragraph 14.0 of Chapter 14, and there is additional discussion on the use of conditions in paragraph 14.5 of Chapter 14, including the future restrictions on the imposition of pre-commencement conditions in a Note appended to that paragraph. A new section on the removal or variation of conditions in light of the Pressland judgment will be found in paragraph 14.5.1 of Chapter 14. Additional discussion of the requirement to notify the applicant of the LPA’s decision on a prior approval application is included in paragraph 15.5 of Chapter 15, and changes to the rules about the temporary use of land or buildings for film-making are covered in Chapter 18.

There is also important new material in the discussion of preclusive conditions in paragraph A.5 of Appendix A in light of the High Court judgment in Dunnett Investments, and an entirely new Appendix D which discusses in detail the issue of structural alterations in relation to residential conversions, especially under Class Q. This is not to mention the numerous appeal decisions that have been added to the text (now with their appeal reference numbers in most cases) and a number of other new judgments, such as Pratt (on evidence as to agricultural use), the East Herts case (on sustainability of location) and Pressland (mentioned above, on conditions), among a number of others.

So if you think you can get by without the Second Edition, think again! And you will gain even more benefit from the new edition by attending the seminar next week. We look forward to seeing you there.

© MARTIN H GOODALL

Further amendments to the GPDO

My publishers and I had a momentary panic when, just after the first print run of the Second Edition of A Practical Guide to Permitted Changes of Use had been delivered from the printers, we learnt of the General Permitted Development (England) (Amendment) (No.2) Order 2016 [SI 2016 No. 1040], which was made on 31 October, laid before parliament on 3 November and comes into force on today (4 November).

But as the late Frankie Howard would have said, “Panic ye not.” This amendment order relates purely to Part 16 of the Second Schedule, which deals with developments by telecoms code operators. I have made a passing reference to Part 16 in the book, in the context of the 56-day rule, but the revised provisions do not alter anything in that regard.

There is, however, something on the horizon which could potentially make a third edition of the book necessary in due course. This is the possible revival of the proposal to allow the demolition and replacement of office buildings under Class O. As I have observed at the end of Chapter 7, in the event that these proposals are revived at any time in the future, they would most probably be foreshadowed by a further ministerial statement setting out ministers’ intentions in the matter at that time, and I would also expect a consultation exercise regarding the additional matters that would require prior approval in respect of proposals for demolition and reconstruction of office buildings. I do not in fact take a mere footnote in an obscure press release, which happened to mention the demolition of offices, as indicating a serious intention on the part of ministers to pursue this at present. (But we shall see.)

© MARTIN H GOODALL

Planning Jungle

Regular readers of this blog will have seen occasional references to the Planning Jungle website. As many planning professionals are already aware, this is an extremely valuable research resource, which deserves to be better known.

This website, www.planningjungle.com, provides a comprehensive survey of appeals against the refusal or non-determination of prior approval applications under Part 3 of the Second Schedule to the GPDO (relating to permitted changes of use), where appeal decisions have been classified, analysed and summarised in accordance with the issues that were considered in each appeal. The site also covers permitted development under Part 1 (domestic extensions and other operational development within the curtilage of a dwellinghouse), as well as a wide range of LDC appeals under section 195.

Full access to the materials available on the Planning Jungle website requires the payment of a membership subscription, but this will give you access to more than 800 appeal decisions on that site relating to Part 3 of the GPDO alone, as well as the other appeal decisions I have mentioned above, and also notes alerting readers to new legislation and other changes in this area of planning law and practice.

Whilst I have no commercial or professional connection with Planning Jungle, I am happy to commend it to readers as a valuable research resource. I have added a link to the website on the sidebar of this blog.

© MARTIN H GOODALL

Stripey house – another twist in the tale

The saga of the house in Kensington that was painted in red and white stripes has become a lengthy and complex legal war of attrition.

There is no time or space to recount the whole story here. We came in at the point where an appeal from the magistrates’ court in respect a section 215 notice was dismissed by the Crown Court (see “Section 215 Notice – House Painting”, posted on Monday, 15 August 2016).

There had already been a long planning and legal battle by this time, in which neighbours had fought to resist the house owner’s development plans for the property. I have no intention of taking sides in this matter. Neighbours are understandably resistant to major development on their doorstep, especially where it involves basement excavations. On the other hand the owner of the property must have found the repeated thwarting of her development proposals deeply frustrating.

The owner, a Mrs Lisle-Mainwaring, has now won two planning appeals in respect of her development proposals, only to see both of these appeal decisions quashed in the High Court. The latest setback came in a judgment in the High Court last month (Carroll v. SSCLG [2016] EWHC 2462 (Admin)). This turned on a detailed examination of the correct approach to the determination of a planning application, and also of an appeal against the refusal of planning permission under section 78. The planning history of the house in question is somewhat complex. Having originally been a house (Use Class C3), the property had then become an office (Use Class B1), then a warehouse or storage facility (Use Class B8), both of which had been perfectly lawful changes of use.

The owner now wished to reinstate the original residential use, and to construct a double-storey basement, or alternatively, to demolish the building and replace it with a new dwelling. The Inspector refused permission for a basement extension, but he granted planning permission for demolition of the existing building, construction of a replacement dwelling, and change of use from Class B8 storage to Class C3 residential, subject to conditions. He also allowed an appeal granting planning permission for change of use to Class C3 residential use. It was the appeal decisions granting these planning permissions that were challenged in the High Court by a neighbour.

In the appeal, the Inspector had found that although the property had previously been in Class B1 office use, the current use of the property was Class B8 storage use. The LPA accepted there had been Class B8 storage use since at least January 2014 (although this was disputed by the Claimant neighbour). The Inspector held that a change of use from B8 to C3 would not be in breach of adopted planning policies. However, it was a material consideration that the use could revert to Class B1 office use from Class B8 storage use, as permitted development, whereas the possibility of a reversion to Class B1 would be lost if the use was changed to Class C3 residential use. Class B1 use would justify protection under the relevant local plan policy. Nonetheless, the prospects of reversion to Class B1 and the loss of that use, contrary to the planning policy in question, was given minimal weight by the Inspector.

In her High Court judgment, Mrs Justice Lang examined the proper approach to the determination of planning applications (and appeals). I do not propose to attempt a summary of this lengthy, but very helpful, exposition of the legal principles involved. But this passage in the judgment will no doubt serve as a very useful guide to planners and lawyers in the future.

The conclusion was that the Inspector had misdirected himself in law in his consideration of the possible future reversion to Class B1 use as a material consideration. When considering the weight to be accorded to the potential reversion to Class B1 use, it was relevant for the Inspector to consider, from an objective standpoint, what the likely future actions of the owner of the property would be (whether the owner was the appellant herself or another owner in the future). The Inspector had erred in disregarding this consideration, apparently on the grounds that “it is not appropriate subjectively to interpret her past conduct or anticipate her future actions regarding the appeal property”. On the authorities and in the circumstances of this case, he was required to make an objective assessment of the likelihood of reversion to Class B1 use, when deciding the question of weight, and his Decision Letter indicated that he did not do so. Furthermore, there was substantial evidence at the Inquiry that a reversion to Class B1 use from Class B8 use was likely, on commercial grounds, if planning permission for residential use was refused.

In her ladyship’s judgment, the Inspector’s erroneous approach to the material consideration of potential reversion to Class B1 use may have affected the outcome of the appeals, and so it would not have been appropriate for the Court to exercise its discretion not to quash the decision, and the decision was accordingly quashed.

So the saga of the stripey house continues. The owner might possibly try to pursue this matter to the Court of Appeal; alternatively, there will be a re-opened appeal to be determined, and it is not beyond the bounds of possibility that another Inspector might be persuaded to grant planning permission, while avoiding the legal error into which the previous inspector was found to have fallen. Clearly, the lengthy legal battle over the future of this controversial property still has some way to go.

© MARTIN H GOODALL